2016Da210788 Claims for land rents, etc. based on subrogation right of the creditor of the creditor.

Pacific Ocean Co., Ltd.

Nowon-gu Seoul Special Metropolitan City

Seoul High Court Decision 2015Na2024599 Decided January 28, 2016

July 29, 2016

The part of the lower judgment regarding the ancillary claim is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The court below found that the land of this case, owned by A Co., Ltd. (hereinafter "A") constitutes "private roads established for the purpose of airport free passage of the general public" subject to exemption from the aggregate land tax, and after June 15, 2000, the defendant knew that the land of this case constitutes "private roads established for the purpose of free passage of the general public" subject to exemption from the aggregate land tax, so the defendant imposed the aggregate land tax of the year 2001 and 202 on A (hereinafter "each taxation of this case") on the land of this case (hereinafter "the land of this case") on a person who does not have any legal relation or factual relation or relation subject to exemption from the aggregate land tax, so the defect is significant and apparent, and it is hard to accept the judgment of the court below that the defendant acquired the land of this case without any legal cause and returned it to A, and thus, it is difficult to accept the plaintiff's claim by subrogation as a creditor of the above A and the plaintiff.

A. The former Local Tax Act (amended by Act No. 732 of Jan. 5, 2005; hereinafter referred to as the "former Local Tax Act") provides that a subject of taxation of the aggregate land tax shall, in principle, be all land (Article 234-8); the aggregate land tax shall not be imposed on land owned by the State, etc. and land for a specific purpose (Articles 234-11, 234-12); and the person who owns the land as of the tax base date shall be liable to pay the aggregate land tax (Article 234-9). As to the calculation, imposition, and collection of the tax amount, the tax amount shall be calculated by applying the tax rate according to each tax base to the aggregate amount of all the values of the land owned by the taxpayer divided into the aggregate tax base, separate aggregate tax base, and separate tax base (Articles 234-15 and 234-16); the aggregate tax amount calculated as well as the aggregate land tax amount calculated as the aggregate land tax shall be determined by the head of a Si/Gun/Gun/Gu having jurisdiction over the relevant City/Gun/Gu.

B. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

1) On February 14, 1975, A acquired the ownership of the E Forest (hereinafter “instant forest”) in Seoul Special Metropolitan City, Nowon-gu, Seoul.

The instant forest was divided into F forest land and G miscellaneous land on March 15, 1975. The said G miscellaneous land was divided into G miscellaneous land and H miscellaneous land on April 7, 1975, and the said F miscellaneous land was changed by the land category and lot number on May 24, 1986. The instant G land was constructed and sold by N apartment around 1976, and the H miscellaneous land divided from the instant forest was constructed on the land divided into H miscellaneous land. A owned 120/1483 of the instant G land and completed the registration of ownership transfer due to sale to U, etc. on October 4, 201.

2) The Defendant imposed KRW 2,215,40 on A as local taxes, including aggregate land tax in 2001, KRW 2,072,550, aggregate land tax in 2002, and KRW 2,215,400. Examining the above facts in light of the legal principles as seen earlier, A may have known that part of the instant G land was owned in addition to the instant land located within the region under the jurisdiction of the Defendant, and thus, there is room to deem that the instant taxation imposed on A was subject to taxation on A, including some of the instant G land,. In determining whether each of the instant taxation imposed on A was null and void, the lower court should have first examined whether the Defendant was subject to taxation on the instant land, and then should have sufficiently deliberated on the assessment basis of aggregate land tax at the time of each taxable year, if each of the instant taxation is subject to aggregate land tax.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that each of the instant taxation dispositions was null and void as a matter of course, on the premise that each of the instant taxation dispositions was subject to the aggregate land tax and the instant land subject to non-taxation, due to significant and apparent defects. In so determining, the lower court erred by misapprehending the legal doctrine on imposition and collection of the aggregate land tax and its subject of taxation as prescribed by the former Local Tax Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion

3. Therefore, the part of the lower judgment regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Park Byung-hee

Chief Justice Park Jong-young

Justices Kim Jae-han